hardships tipping decidedly in [their] favor.” Tom Doherty, 60 F.3d at 33. On this record, plaintiffs have not shown that the balance of hardships decidedly favors them.
Defendants claim that an injunction barring them from further distributing “Expelled” with the excerpt of “Imagine” and requiring the recall of extant prints would require them to reedit the movie to insert substitute footage making the same point. (Supplemental Decl. of John Sullivan dated May 19, 2008 (“Sullivan Supplemental Decl.”) ¶ 5.) They estimate that selecting appropriate alternative footage and integrating it into the movie would require weeks of work. (Id. ¶¶ 6-10.) Indeed, defendants estimate that “the cost of re-cutting the film would be several hundred thousands dollars.” (Craft Decl. ¶ 35.) In addition, they anticipate that transferring the new footage to 35 millimeter film for theatrical screening, including the movie’s upcoming Canadian theatrical release, would cost tens of thousands of dollars. (Id. ¶ 37.) Defendants also claim that an injunction at this time would jeopardize an imminent Canadian theatrical release (it is currently scheduled for “early June”) and delay the contract for the movie’s release on DVD. (Id. ¶¶ 33, 37.)
Plaintiffs challenge a number of these assertions. In particular, they contend that costs of reediting the movie and reprinting the affected portions onto 35 millimeter film stock would be substantially lower than defendants claim. (Decl. of Walter “Chip” Cronkite III dated May 16, 2008 (“Cronkite Decl.”) at ¶¶ 17-18.)
This Court need not decide whether the hardship to defendants would be as extensive as they claim, because the balance of hardships would not in any event tip decidedly in plaintiffs’ favor. An injunction would require defendants to bear some degree of financial hardship: even plaintiffs’ expert concedes that reprinting the movie would cost defendants at least $56,000. (Id. ¶ 18.) Defendants face additional costs associated with any delay in the Canadian theatrical and DVD releases occasioned by any required editing.
Plaintiffs, on the other hand, assert that the hardship they would face if an injunction does not issue is that the lack of an injunction would engender the perception that it is not necessary to seek permission to copy, with attendant loss of licensing fees. (Decl. of Nancy Weshkoff, Ex. C to Weber Decl., ¶¶ 21-22.) Although these claims are plausible, they are intangible at best, and are answered by the fact that fair use is a defense to copyright infringement. Without some showing that plaintiffs will face substantial lost licensing revenue absent an injunction, this Court cannot conclude that the balance of hardships tips decidedly in plaintiffs’ favor.
IV. CONCLUSION
Because defendants are likely to prevail on their fair use defense, plaintiffs have failed to show, on the basis of the record developed to date, a clear likelihood of success or even a simple likelihood of success on the merits of their copyright infringement claim. Plaintiffs have also now shown that the balance of hardships tips decidedly in their favor. Accordingly, plaintiffs’ motion for a preliminary injunction is denied.
SO ORDERED.
